21-6444 Alahi v. Garland BIA Poczter, IJ A209 420 191
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 18th day of October, two thousand 4 twenty-three. 5 6 PRESENT: 7 DENNIS JACOBS, 8 BETH ROBINSON, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 MONZUR ALAHI, 14 Petitioner, 15 16 v. 21-6444 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23
* The Clerk’s office is directed to amend the caption as reflected above. 1 FOR PETITIONER: Xiaotao Wang, Esq., Flushing, NY. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Jennifer R. Khouri, Senior 5 Litigation Counsel; Brandon T. Callahan, 6 Trial Attorney, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that the petition for review is DENIED.
12 Petitioner Monzur Alahi, a native and citizen of Bangladesh, seeks review
13 of a July 15, 2021, decision of the BIA affirming a July 31, 2018, decision of an
14 Immigration Judge (“IJ”) denying Alahi’s application for asylum, withholding of
15 removal, and relief under the Convention Against Torture (“CAT”). In re Monzur
16 Alahi, No. A209 420 191 (B.I.A. July 15, 2021), aff’g No. A209 420 191 (Immig. Ct.
17 N.Y. City July 31, 2018). We assume the parties’ familiarity with the underlying
18 facts and procedural history.
19 Under the circumstances, we have considered the IJ’s decision as modified
20 by the BIA, meaning minus the IJ’s burden findings that the BIA did not reach.
21 See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review
22 an adverse credibility determination “under the substantial evidence standard.”
2 1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative
2 findings of fact are conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Considering
4 the totality of the circumstances, and all relevant factors, a trier of fact may base a
5 credibility determination on . . . the consistency between the applicant’s or
6 witness’s written and oral statements (whenever made and whether or not under
7 oath, and considering the circumstances under which the statements were made),
8 the internal consistency of each such statement, [and] the consistency of such
9 statements with other evidence of record . . . , and any inaccuracies or falsehoods
10 in such statements, without regard to whether an inconsistency, inaccuracy, or
11 falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination
13 unless, from the totality of the circumstances, it is plain that no reasonable fact-
14 finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,
15 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
16 Substantial evidence supports the agency’s determination that Alahi was
17 not credible as to his claim that members of the Awami League attacked and
18 threatened to kill him when he resisted their attempt to extort him.
3 1 The agency reasonably relied on Alahi’s inconsistent statements and
2 omissions regarding the timing of the attack relative to the assailants’ initial
3 demand that he give them money, how many times he was threatened, what
4 injuries he suffered, where he went after the attack, and how he knew his attackers
5 were members of the Awami League. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v.
6 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
7 preclude an alien from showing that an IJ was compelled to find him credible.
8 Multiple inconsistencies would so preclude even more forcefully.”); Hong Fei Gao,
9 891 F.3d at 78–79 (noting that an omission may support an adverse credibility
10 determination if the omitted “facts are ones that a credible petitioner would
11 reasonably have been expected to disclose under the relevant circumstances”).
12 The agency reasonably relied on the record of Alahi’s credible fear interview
13 in assessing credibility because the interview record bears the hallmarks of
14 reliability: It was conducted with an interpreter, it was memorialized in a
15 typewritten question-and-answer format, the questions posed were designed to
16 elicit details of his asylum claim, and Alahi’s responses indicated that he
17 understood the questions posed. See Ming Zhang v. Holder, 585 F.3d 715, 724–26
18 (2d Cir. 2009) (requiring scrutiny of credible fear interviews but finding record
4 1 reliable where it was typewritten, demonstrated that the applicant understood the
2 questions, reflected questions about past harm or fear of future harm, and was
3 conducted with an interpreter). And contrary to Alahi’s argument to this Court,
4 the record of the credible fear interview reflects that Alahi was expressly advised
5 that he could reschedule the interview so his sponsor could hire him an attorney,
6 and he elected to proceed by himself. He did not testify to the contrary in the
7 hearing.
8 Further, some of the inconsistencies relied upon by the agency relate to
9 matters Alahi described in the credible fear interview but omitted from his hearing
10 testimony, undermining his argument that the agency improperly rested its no-
11 credibility finding on his failure in the credible fear interview to “mention every
12 detail and specific insight into the persecution which he suffered.” Pet. Br. 14.
13 In particular, in his credible fear interview Alahi described a second encounter
14 with the assailants in which they came to his home after he was released from the
15 hospital and told him they would beat him again if he tried to report them. He
16 did not describe such a second encounter in his hearing testimony.
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21-6444 Alahi v. Garland BIA Poczter, IJ A209 420 191
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 18th day of October, two thousand 4 twenty-three. 5 6 PRESENT: 7 DENNIS JACOBS, 8 BETH ROBINSON, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 MONZUR ALAHI, 14 Petitioner, 15 16 v. 21-6444 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23
* The Clerk’s office is directed to amend the caption as reflected above. 1 FOR PETITIONER: Xiaotao Wang, Esq., Flushing, NY. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Jennifer R. Khouri, Senior 5 Litigation Counsel; Brandon T. Callahan, 6 Trial Attorney, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that the petition for review is DENIED.
12 Petitioner Monzur Alahi, a native and citizen of Bangladesh, seeks review
13 of a July 15, 2021, decision of the BIA affirming a July 31, 2018, decision of an
14 Immigration Judge (“IJ”) denying Alahi’s application for asylum, withholding of
15 removal, and relief under the Convention Against Torture (“CAT”). In re Monzur
16 Alahi, No. A209 420 191 (B.I.A. July 15, 2021), aff’g No. A209 420 191 (Immig. Ct.
17 N.Y. City July 31, 2018). We assume the parties’ familiarity with the underlying
18 facts and procedural history.
19 Under the circumstances, we have considered the IJ’s decision as modified
20 by the BIA, meaning minus the IJ’s burden findings that the BIA did not reach.
21 See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review
22 an adverse credibility determination “under the substantial evidence standard.”
2 1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative
2 findings of fact are conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Considering
4 the totality of the circumstances, and all relevant factors, a trier of fact may base a
5 credibility determination on . . . the consistency between the applicant’s or
6 witness’s written and oral statements (whenever made and whether or not under
7 oath, and considering the circumstances under which the statements were made),
8 the internal consistency of each such statement, [and] the consistency of such
9 statements with other evidence of record . . . , and any inaccuracies or falsehoods
10 in such statements, without regard to whether an inconsistency, inaccuracy, or
11 falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination
13 unless, from the totality of the circumstances, it is plain that no reasonable fact-
14 finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,
15 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
16 Substantial evidence supports the agency’s determination that Alahi was
17 not credible as to his claim that members of the Awami League attacked and
18 threatened to kill him when he resisted their attempt to extort him.
3 1 The agency reasonably relied on Alahi’s inconsistent statements and
2 omissions regarding the timing of the attack relative to the assailants’ initial
3 demand that he give them money, how many times he was threatened, what
4 injuries he suffered, where he went after the attack, and how he knew his attackers
5 were members of the Awami League. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v.
6 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
7 preclude an alien from showing that an IJ was compelled to find him credible.
8 Multiple inconsistencies would so preclude even more forcefully.”); Hong Fei Gao,
9 891 F.3d at 78–79 (noting that an omission may support an adverse credibility
10 determination if the omitted “facts are ones that a credible petitioner would
11 reasonably have been expected to disclose under the relevant circumstances”).
12 The agency reasonably relied on the record of Alahi’s credible fear interview
13 in assessing credibility because the interview record bears the hallmarks of
14 reliability: It was conducted with an interpreter, it was memorialized in a
15 typewritten question-and-answer format, the questions posed were designed to
16 elicit details of his asylum claim, and Alahi’s responses indicated that he
17 understood the questions posed. See Ming Zhang v. Holder, 585 F.3d 715, 724–26
18 (2d Cir. 2009) (requiring scrutiny of credible fear interviews but finding record
4 1 reliable where it was typewritten, demonstrated that the applicant understood the
2 questions, reflected questions about past harm or fear of future harm, and was
3 conducted with an interpreter). And contrary to Alahi’s argument to this Court,
4 the record of the credible fear interview reflects that Alahi was expressly advised
5 that he could reschedule the interview so his sponsor could hire him an attorney,
6 and he elected to proceed by himself. He did not testify to the contrary in the
7 hearing.
8 Further, some of the inconsistencies relied upon by the agency relate to
9 matters Alahi described in the credible fear interview but omitted from his hearing
10 testimony, undermining his argument that the agency improperly rested its no-
11 credibility finding on his failure in the credible fear interview to “mention every
12 detail and specific insight into the persecution which he suffered.” Pet. Br. 14.
13 In particular, in his credible fear interview Alahi described a second encounter
14 with the assailants in which they came to his home after he was released from the
15 hospital and told him they would beat him again if he tried to report them. He
16 did not describe such a second encounter in his hearing testimony.
17 Finally, Alahi did not compellingly explain his inconsistent statements, and
18 his explanations themselves resulted in additional inconsistencies. See Majidi v.
5 1 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a
2 plausible explanation for his inconsistent statements to secure relief; he must
3 demonstrate that a reasonable fact-finder would be compelled to credit his
4 testimony.” (internal quotation marks and citation omitted)).
5 Having questioned Alahi’s credibility, the agency reasonably relied further
6 on his failure to rehabilitate his testimony with reliable corroborating evidence.
7 “An applicant’s failure to corroborate his or her testimony may bear on credibility,
8 because the absence of corroboration in general makes an applicant unable to
9 rehabilitate testimony that has already been called into question.” Biao Yang v.
10 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably found that letters
11 from Alahi’s family and friends did not rehabilitate his credibility because they
12 did not mention a second threat he claimed to have received. See Y.C. v. Holder,
13 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination of the
14 weight afforded to an alien’s documentary evidence.”). The IJ also did not err in
15 finding Alahi’s handwritten medical record unreliable because it misspelled
16 numerous words. Id. at 334.
17 The inconsistencies and lack of reliable corroboration constitute substantial
18 evidence for the agency’s adverse credibility determination. See 8 U.S.C.
6 1 § 1158(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145 n.8; Xiu Xia Lin, 534 F.3d at 165–67;
2 Biao Yang, 496 F.3d at 273. The adverse credibility determination is dispositive of
3 asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
4 148, 156–57 (2d Cir. 2006).
5 We reject Alahi’s argument, not raised before the BIA, that even in the face
6 of an adverse credibility finding as to his claim of past persecution, Alahi
7 established a well-founded fear of future persecution on the basis of “pattern or
8 practice” evidence. See id. at 154(“[W]ith respect to petitions for both asylum and
9 withholding of removal, an applicant may prevail on a theory of future
10 persecution despite an IJ’s adverse credibility ruling as to past persecution, so long
11 as the factual predicate of the applicant’s claim of future persecution is independent of the
12 testimony that the IJ found not to be credible.”). Alahi did not exhaust this argument
13 by presenting it to the BIA. See Zhong v. U.S. Department of Justice, 480 F.3d 104,
14 122 (2d Cir. 2007) (requiring petitioner to exhaust issues before the BIA), abrogated,
15 in part on other grounds by Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1111–14 (2023)
16 (holding that exhaustion under 8 U.S.C. § 1252(d)(1) is not jurisdictional).
17 In addition, Alahi’s argument that he would face future persecution if
18 removed depends in part on his claim to have been attacked by members of the
7 1 Awami League, which the IJ found to be not credible. Plus, his brief relies in part
2 on country conditions evidence, such as the U.S. Department of State Bangladesh
3 2018 Human Rights Report, that was not in evidence. See 8 U.S.C. § 1252(b)(4)(A)
4 (“[T]he court of appeals shall decide the petition only on the administrative record
5 on which the order of removal is based.”). And to the extent that Alahi has cited
6 country conditions evidence describing government sponsored violations of the
7 human rights of members of the opposition political party, that evidence is of
8 limited relevance here, where Alahi has testified that he and his family were “not
9 involved in any political party.” Cert. Admin. Rec. 134.
10 For the foregoing reasons, the petition for review is DENIED. All pending
11 motions and applications are DENIED and stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court